Gould v. Boston & M.R.R.

• Decision Date: 20 February 1933
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GOULD v. BOSTON & M. R. R.

282 Mass. 160

184 N.E. 449

GOULD

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 20, 1933.

Exceptions from Superior Court, Middlesex County; H. P. Williams, Judge.

Action by Fernald L. Gould, administrator, etc., against the Boston & Maine Railroad. Verdict for the plaintiff, and the defendant brings exceptions.

Exceptions overruled.

Richard B. Walsh, of Lowell, for plaintiff.

J. M. Maloney, of Boston, and F. F. O'Donnell and M. J. Cohen, both of Lowell, for defendant.

CROSBY, Justice.

This is an action of tort brought by the plaintiff as administrator of the estate of James W. Gould, to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant in the operation of one of its street cars in the town of Hookset, in the State of New Hampshire. The action is brought under Pub. Sts. of New Hampshire, c. 191, §§ 8-13, inclusive, now Public Laws of New Hampshire, c. 302, §§ 9-14, inclusive. The defendant's answer consists of a general denial and contributory negligence. The case was tried in the Superior Court to a jury. There was a verdict for the plaintiff. The case is before this court on exceptions to the denial of the defendant's motion for a directed verdict, to the admission of certain evidence, to the refusal of the judge to give a certain instruction, and to a part of the charge.

The plaintiff testified in his direct examination in substance as follows: On November 29, 1924, he and his father, the intestate, left Concord about five o'clock in the afternoon in an automobile and travelled in a southerly direction. When he left Concord it was ‘snowing moderately’ and was dark. They followed an electric car until they came to a fork in the road, the car turned to the right, and they went straight ahead and travelled down into Hookset. The windshield became clogged and the plaintiff drove the automobile to the right side of the road so that his father might get out and clean the windshield as it was then snowing very heavily. Just as his father stepped out the plaintiff saw an electric car approaching and he warned his father, saying ‘Look out for the car.’ He then proceeded to move the automobile to the opposite side of the road because it looked as if he were in the way of the car. He paused for a few seconds and when his father did not come to him he got out and found him lying in the street. Two or three inches of snow had fallen which had covered the highway, and he could not see any street car tracks at the place where he came to a stop and did not know they were there; he saw no signs of previous traffic in the highway. The automobile he was driving had a left-hand drive. His father had been seated on the front seat on the plaintiff's right. He pulled over to the right side of the road when he stopped so that if there was any traffic there would be room for it to pass. He left his motor running all the time. Both his headlights were lighted. It was dark. After he stopped the automobile and just as his father stepped out he saw the trolley car approaching. Before his father stepped out of the automobile he had to unlatch the curtains and it took a little time to release them. When he first saw the trolley approaching from the opposite direction his father was standing beside the right hand front door, and he warned him immediately and then, as soon as he could get the engine running fast enough to start the car, he pulled his automobile diagonally across the highway. At the time he started to move his father was standing beside the right-hand door. That was the last time he saw him until he went back and found him lying in the highway. The trolley car passed the point where he had originally stopped his automobile just as he got the automobile moving and it was about its length beyond this point. He could not tell how long a time elapsed between the time when the trolley first came in sight, and when it passed the point where his automobile was parked originally; he ‘barely had time to get the car moving.’ The trolley car was travelling about twenty-five miles an hour. He did not notice any change in its speed at any time after he first saw it. He did not hear any gong or whistle from it. He did not know whether his automobile was on the car tracks when he first brought it to a stop. When he went back and found his father lying in the road, his feet were toward the tracks, his body was almost in the middle of the highway; he was groaning and unconscious and never regained consciousness, and died before reaching the hospital in Manchester. The plaintiff further testified that near the place where the accident occurred he noticed a farm house a little ahead on the right, and a gas station beyond, northerly, on the other side of the street; that he saw no other buildings near the place of the accident; that when he stopped his automobile there were lights in the farm house and in the gas station. He further testified that about four years after the accident he went to the place of the accident and made certain measurements; that conditions were the same as they were the night of the accident; the width of the highway is twenty-eight feet, and constructed of macadam, which is eighteen feet wide beginning at a point two feet from the inner rail, the two feet between the rail and the macadam being covered with gravel; that the inner rail is flush with the top of the highway and the space between the rails is covered with gravel; that southerly from the place of the accident the highway is approximately straight and level for two hundred yards; that the distance from the place of the accident southerly to the farm house is about forty-two yards and to the gasoline station northerly about seventy-five yards; that he first saw the trolley car when it came into view over the hill approximately two hundred yards from the place where his car was parked; that he saw the headlight on the car and saw either the motorman or conductor that night; that the car came to a stop in front of the gasoline station; that the next day he noticed a black and blue bruise mark on his father's forehead, just over his right eye, which was not there before the accident; that after the accident the conductor showed the plaintiff a mark on the side of the car, the mark was just behind the vestibule door on the side next to the travelled part of the highway. On cross-examination the plaintiff testified that he did not see the accident, but afterwards saw the mark on the side of the car above referred to; that at the time of the accident there were two or three inches of snow on the road, but he did not see a rail or any macadam or gravel; that as he travelled south after the car he had followed turned to the right off the highway he assumed there were then no tracks along the highway; that when he turned off to the right and stopped there was ample room for the street car to pass him, and that it did pass without hitting his automobile but that he barely got out of the way; that he was certain his father did not go in front of, or behind, the car; that the last time he saw his father, the latter had just got onto the ground.

One Raymond, a witness called by the plaintiff, testified, that he did not see the accident, but saw people gathered at a point between eighty and one hundred yards south of the gas station and probably about forty-five yards north of the farm house; that the electric car came to a stop directly opposite the gas station; that it was snowing hard and about three inches...